Court ruling on injunction irrational

Updated 4:59 pm, Thursday, November 7, 2013

U.S. Supreme Court Justice Antonin Scalia will review the appeal of a Texas abortion law ruling.

U.S. Supreme Court Justice Antonin Scalia will review the appeal of a Texas abortion law ruling.

Photo: Charles Rex Arbogast, Associated Press

Court ruling on injunction irrational

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SAN ANTONIO — There is a difference of opinion about when a burden is “undue” or even whether it's a burden.

A federal district judge, in a ruling blocking an anti-abortion measure in Texas, said no law can impose “undue burden” on a woman's decision to have an abortion before fetal viability.

The law requires doctors who provide abortions to have admitting privileges at a hospital within 30 miles of the clinic. U.S. District Court Judge Lee Yeakel determined this served no rational basis.

The number of women who suffer complications from these procedures is estimated at 0.3 percent, and most complications can be addressed in the health center where the physicians practice. For rare serious complications, emergency rooms are available, just as they are for the myriad other cases that don't involve abortions. Doctors who perform other invasive outpatient services are not necessarily under admitting-privilege obligations. And hospitals can use rules and bureaucracy to deny privileges to doctors who perform abortions.

Yet, in overturning the district court injunction, the 5th Circuit panel wrote that clinics closing would not “constitute an undue burden in a large fraction of the relevant cases.”

To hedge its bet, it said that even if burden were imposed, “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose. And the valid purpose? Maintaining high standards for doctors, though the state did not prove medical need for the admitting privileges.

No undue burden? Women who had been scheduled for legal abortions are still pregnant, and Texas now has a ban on most abortions after 20 weeks. Since the U.S. Court of Appeals for the 5th Circuit overturned Yeakel's injunction last week, 12 to 14 providers are limiting access and some 22,000 women are affected, according to reports.

Affected clinics are appealing to the U.S. Supreme Court to reinstate the injunction. Justice Antonin Scalia, who handles such requests from Texas, can rule on this himself or refer it to the full court. If Scalia rules and the plaintiffs disagree, they can ask for full court review.

We're hopeful that Scalia will see the obvious — “undue burden” is transparent and inflicted on the pretext of concern for women's health.